Exhibit 10.30
TELEMARKETING AGREEMENT
THIS AGREEMENT has been amended and entered into this 1 day of July, 1998
by and between RMH, with offices at 00 Xxxxxx Xxx., Xxxx Xxxx, Xx. and
BRANDDIRECT with offices at 000 Xxxx Xxxxx, Xxxxxx, XX 00000.
ARTICLE I
TERM
Section 1.01 Term and Renewal and Survival
This Agreement, together with Exhibit(s) A, B and C shall be effective on
execution and shall continue thereafter, subject to the right of either party to
terminate by giving written notice to the other at least sixty (60) days prior
to the date of such termination. Article V, Sections 5.01 through 5.08 of this
Agreement shall survive the termination of this Agreement and will continue to
be in effect for a period of three (3) years following the effective date of
termination by either party.
ARTICLE II
RMH COVENAINTS
Section 2.01. Hiring and Training
RMH shall manage, direct, hire and train all personnel assigned to BRANDDIRECT
projects, and RMH shall have sole responsibility for all salaries, wages and
benefits of said employees.
Section 2.02. Facilities and Equipment
RMH shall provide all necessary facilities, telephone equipment and proper
administrative and clerical support in furtherance of this Agreement.
Section 2.03. Records
RMH shall keep and maintain accurate and complete records of all services
performed for BRANDDIRECT. These shall include, but not limited to, records of
the number and type of telephone calls completed on behalf of BRANDDIRECT, the
number of telephone line and labor hours (including break and off-line time) by
Telemarketing Service Representative (TSR) used to complete such calls, the
number and type of sales obtained as a result of such calls, clearly audible
cassette recordings of all sales confirmations, and in addition complete hard
copy records of all sales transactions, as well as, all data transmitted
electronically by RMH to BRANDDIRECT.
Section 2.04. Confirmation Tapes
RMH shall retain all confirmation tapes for at least thirty-seven (37) months
from the later of the completion date of each telemarketing campaign or the date
this Agreement is terminated. Confirmation tapes must adhere to all standards
outlined in BRANDDIRECT's Telemarketing Vendor Standards. Upon request, RMH
shall make confirmation tapes available within 48 hours for inspection and/or
copying by BRANDDIRECT.
Section 2.05. Reporting
RMH shall, on a project basis, render to BRANDDIRECT a daily oral report of all
gross calling results performed the previous day and/or evening. RMH shall, on a
daily basis, render a written statement in a format mutually agreed upon by
BRANDDIRECT and RMH, setting forth the number of telephone calls completed, the
number of hours used to make such calls, the number of gross and net (after
sales auditing and callback verification) sales obtained during the previous 48
hour period along with all other statistical information deemed appropriate and
requested by BRANDDIRECT and RMH.
Where BRANDDIRECT has established certain project basis results criteria, RMH
shall notify BRANDDIRECT immediately by telephone, and promptly by written
statement of all difficulties encountered by RMH which may result in RMH
inability to achieve such results criteria.
Section 2.06. Script Revisions
RMH shall present, prior to use, any and all proposed revisions to the
Telemarketing Service script(s), questions sheet(s), answer sheet(s), and
objection sheet(s) to BRANDDIRECT for written approval by BRANDDIRECT and its
CLIENTS. All such changes when approved in writing by BRANDDIRECT shall remain
the sole property of BRANDDIRECT at all times. BRANDDIRECT makes no advance
warranty that any proposed revisions will be accepted for use by BRANDDIRECT or
its CLIENT and the use of any proposed change may be withheld by BRANDDIRECT or
its CLIENT.
Section 2.07. Quality Control
RMH shall adhere to BRANDDIRECT's Quality Control Guidelines for Telemarketing
Services. These Guidelines are attached hereto as Exhibit "A" and are subject to
change by written notification of RMH and at the sole option of BRANDDIRECT.
ARTICLE III
BRANDDIRECT's COVENANTS
Section 3.01. Script Approval
BRANDDIRECT and its CLIENTS shall provide, in writing, an approved Telemarketing
Service script, question, answer and objection sheet for RMH to use for training
and sales generation.
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RMH agrees to use only the approved Telemarketing Service Script verbatim,
except as provided in Section 2.06 above.
ARTICLE IV
FEES
Section 4.01. Line Hour Fee
BRANDDIRECT agrees that in consideration of RMH providing to BRANDDIRECT those
functions described in ARTICLE II above, BRANDDIRECT shall pay RMH in accordance
to the following payment schedule:
Gross Sale Per TM Hour Rate Per TM Hour
---------------------- ----------------
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
Rates will be paid on a net sales per logged system hour basis, per invoice
period, per campaign. "Net Sale" means any order received by RMH for
BRANDDIRECT's products with respect to which RMH transmits complete order
information to BRANDDIRECT. No payment will be made for breaks, training, or
time not logged onto the system in furtherance of sales made on behalf of
BRANDDIRECT. Payment is net 60 days from date of receipt. All invoices must be
submitted to Accounts Payable, BRANDDIRECT, 000 Xxxx Xxxxx, Xxxxxx, XX 00000.
Section 4.02 Program Performance
If a program is performing at under one (1) sale per hour, then RMH is not to
call more than 50 total hours a day without first notifying BRANDDIRECT.
BRANDDIRECT will not pay for any hours over the maximum 50 hours a day allowed.
RMH must receive written consent from BRANDDIRECT to call beyond the 50 hour
maximum on any program that performs below (1) sale per hour.
ARTICLE V
GENERAL MATTERS RELATLNG TO AGREEMENT
Section 5.01. Confidentiality of Names and Information (Non-Disclosure
Agreement)
RMH agrees that all names and information supplied to, enhanced by or collected
by RMH on behalf of BRANDDIRECT are the sole property of BRANDDIRECT, and/or its
CLIENT and are of valuable, confidential and proprietary nature, and that RMH
and its employees, agents or suppliers warrant to BRANDDIRECT that they shall at
all times maintain the confidentiality of such names and information. RMH
acknowledges that all names and information submitted by BRANDDIRECT are the
sole property of BRANDDIRECT and/or its CLIENT. RMH further agrees that it will
not in any way duplicate any of the names, information, or solicitation
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materials, nor will it sell, rent or in any way release the names or information
to any third party for any reason whatsoever without the prior written consent
of BRANDDIRECT.
Section 5.02. Audits
RMH hereby grants to BRANDDIRECT and its representatives the unconditional right
and power to audit or review RMH's financial books, transaction records,
confirmation tapes and all other documents and data that relate to the terms and
conditions of this Agreement.
Section 5.03. Compliance With Laws and Regulations
RMH represents that it has obtained, where required by law or regulatory
authority, all permits, licenses and approvals necessary in each state for it to
conduct the Telemarketing Services, or, alternatively, that it is exempt from
obtaining same. Upon request, RMH will provide BRANDDIRECT with copies of all
such permits, licenses and approvals and, in the case of exemptions,
satisfactory proof of the applicability of such exemptions.
Section 5.04. Indemnification
Both parties agree to indemnify and hold the other party, its shareholders,
officers, directors, employees, agents and its clients harmless against any and
all actions, claims, litigation (including attorney's costs and fees), damages,
fines, or disciplinary actions by any federal, state or local governmental
agency, including but not limited to state insurance departments, and any and
all other individuals which may arise as a result of either party's failure to
perform in accordance with the terms of this Agreement.
Because it is critical that RMH faithfully perform its obligations with respect
to record-keeping, and because the harm that would result from RMH's failure to
perform its obligations under Section 2.03 and 2.04 to make required records and
tapes available to BRANDDIRECT within 48 hours of request might not be
susceptible of precise calculation, any violation of those provisions shall
entitle BRANDDIRECT to liquidated damages in the amount of $5000 per day for
each calendar day that RMH fails to produce requested records and/or tapes, up
to a maximum of $100,000, in addition to any other remedies available under this
Agreement or otherwise. The parties stipulate and agree that this is a
reasonable approximation of the actual damages BRANDDIRECT will suffer in the
event of a violation, and that proof of the existence or amount of actual
damages shall not be required.
Section 5.05. Independent Contractor
Except as specifically provided in this Agreement, the parties hereto shall be
considered independent contractors with respect to each other and, as such, this
Agreement does not constitute either party as an employee, partner or legal
representative of the other party or BRANDDIRECT's CLIENTS for any purpose
whatsoever. RMH shall not have the right to bind BRANDDIRECT or to transact any
business in BRANDDIRECT's name or the names of BRANDDIRECT's CLIENTS other than
as provided in this Agreement.
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Section 5.06. Assignment
Neither this Agreement nor any of the rights and obligations under this
Agreement may be assigned, in whole or in part, by either of the parties without
the prior written consent of the other party. Any attempt to assign or transfer
this Agreement or any of the rights or obligations under this Agreement is
prohibited, provided that (a) nothing herein shall preclude BRANDDIRECT or RMH
from assigning its rights and duties hereunder without notice to a subsidiary or
an affiliate, whether now existing or hereafter formed, and (b) neither a change
in control nor an assignment by operation of law shall be deemed an assignment
hereunder.
Subject to the limitations contained in this Section 5.06, the terms and
conditions of this Agreement shall bind and inure to the benefit of each of the
respective successors and assigns of the parties hereto.
Section 5.07. Entire Agreement
There are no other Telemarketing Agreements, representations, guarantees or
understandings, either oral or in writing, between the parties to this
Agreement. No changes to this Agreement shall be valid or binding upon either
party unless such changes are approved in writing by both parties.
Section 5.08. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Connecticut.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
respective dates indicated below. Dated this ____ day of ________ 1998.
X.XX BRANDDIRECT
BY: ____________________________ BY: ____________________________________
(COMPANY REPRESENTATIVE) Xxxx Xxxxx
Senior Vice President, Telemarketing
DATE: 7/29/98 DATE: __________________________________
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